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EXHIBIT 10.4
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Third
Amendment") is made as of the _____ day of _____________, 1999, by and among THE
XXXX GROUP INC., a Louisiana corporation ("Borrower"), MERCANTILE BUSINESS
CREDIT INC., a Missouri corporation, BANK ONE LOUISIANA, N. A., a national
banking association (successor to First National Bank of Commerce, assignee of
City National Bank of Baton Rouge), UNION PLANTERS BANK N.A., a national banking
association, and HIBERNIA NATIONAL BANK, a national bank (collectively, the
"Banks"), and MERCANTILE BUSINESS CREDIT INC., a Missouri corporation, as agent
for Banks (in such capacity, the "Agent").
WITNESSETH:
WHEREAS, Borrower, Agent and Banks have heretofore entered
into that certain Credit Agreement dated as of May 15, 1998, as previously
amended by that certain Amendment to Credit Agreement dated as of August 31,
1998 and that certain Second Amendment to Credit Agreement dated as of February
1, 1999 made by and among Borrower, Agent and Banks (as amended, the
"Agreement"); and
WHEREAS, Borrower desires to further amend the Agreement in
the manner hereinafter set forth, to which amendments Agent and Banks are
willing to agree.
NOW, THEREFORE, in consideration of the above premises and for
other valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
1. The definition of "Applicable Margin" is hereby deleted in
its entirety, and in its place shall be substituted the following:
Applicable Margin shall mean, with respect to each type of
Revolving Credit Loan, the rate of interest per annum shown in the applicable
column below for the type of Revolving Credit Loan specified for each such
column:
Level I Level II Level III Level IV Level V
------- -------- --------- -------- -------
IF RATIO OF CONSOLIDATED TOTAL FUNDED < 4.50 < 4.00 < 3.00 < 2.50 < 2.00
DEBT TO CONSOLIDATED EBITDA AT THE => 4.00 => 3.00 => 2.50 => 2.00
PRECEDING QUARTER END IS
LIBOR Loans 2.50% 1.50% 1.20% 1.00% 0.75%
Prime Loans 1.75% 0.25% 0.00% 0.00% 0.00%
Commitment Fee 0.375% 0.20% 0.15% 0.125% 0.10%
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In the event that the Ratio of Consolidated Total Funded Debt to Consolidated
EBITDA for a fiscal quarter-end shall equal or exceed 4.50, then each of the
Revolving Loans shall bear interest at the rate applicable after the occurrence
of an Event of Default as set forth in Section 3.4(b) hereof.
Notwithstanding the above, the Applicable Margins applicable to each Revolving
Credit Loan up to the date the Borrower delivers its Form 10-Q and Compliance
Certificate for the quarter ended February 28, 1998 shall be Zero Percent (0.0%)
per annum for Prime Loans and One Percent (1.0%) per annum for LIBOR Loans with
interest periods commencing on or before such date, and the Commitment Fee shall
be calculated at the rate of One-Eighth of One Percent (0.125%) per annum for
the portion of each fiscal quarter occurring on or before such date. Commencing
on each June 1, September 1, December 1 and March 1 during the Term hereof or as
soon thereafter as Agent shall have received Borrower's quarterly Form 10-Q or
Form 10-K, as the case may be, and Compliance Certificate for the most recent
quarter-end pursuant to Section 7.1(a), the ratio of Consolidated Total Funded
Debt to Consolidated EBITDA for such most recent fiscal quarter-end shall be
computed by Agent and the Applicable Margins shall be adjusted and become
effective (except the effective date for LIBOR Loans shall be as set forth in
the last sentence of this definition) as of the delivery date of such Form 10-Q
or Form 10-K and Compliance Certificate in accordance with the levels set forth
above. Such new Applicable Margins shall continue in effect until the next such
adjustment, if any, on the following June 1, September 1, December 1 and March 1
(or such later delivery date of the quarter-end Form 10-Q or Form 10-K, as the
case may be, and Compliance Certificate for such most recent quarter-end) in
accordance with the preceding sentence. Each determination by Agent of the
Applicable Margins shall be deemed prima facie correct. All such adjustments
shall become effective as to LIBOR Loans outstanding on the first day of any
quarter (or on any such later date of determination of Applicable Margins under
this definition) upon the expiration of the then current applicable Interest
Periods for such LIBOR Loans.
2. The definition of "Consolidated Total Funded Debt" is
hereby deleted in its entirety, and in its place shall be substituted the
following:
Consolidated Total Funded Debt shall mean, as of any fiscal
quarter-end of the Borrower, the sum of (a) the outstanding principal amount of
all Revolving Credit Loans on any such fiscal quarter-end date, plus (b) the
undrawn face amount of all issued and outstanding Letters of Credit or any other
letters of credit issued for the account of Borrower or its Consolidated
Subsidiaries as of any such fiscal quarter-end date, plus (c) all of the
Borrower's and its Consolidated Subsidiaries' other borrowed money Indebtedness
outstanding on any such fiscal quarter-end date, including, without limitation,
amounts due under any Capitalized Leases, minus (d) Subordinated Debt in an
aggregate principal amount of up to Ten Million Dollars ($10,000,000.00),
provided that Borrower has agreed in writing not to make any payments of
principal or other amounts (other than interest) on such Subordinated Debt
during the Term hereof.
3. Section 1 of the Agreement is hereby deleted in its
entirety, and in its place shall be substituted the following:
The "Term" of this Agreement shall commence on the date hereof
and shall end on May 31, 2002, unless earlier terminated pursuant to
Section 3.11 or by acceleration or otherwise upon the occurrence of an
Event of Default under this Agreement, in which case the Term hereof
shall end on such earlier date.
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4. Section 7.1(a)(i) of the Agreement is hereby deleted in its
entirety, and in its place shall be substituted the following:
(i) As soon as available and in any event within ninety
(90) days after the end of each fiscal year of Borrower, the
consolidated balance sheets of Borrower and its Consolidated
Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income, retained earnings and cash flows for
such fiscal year, setting forth in each case, in comparative form, the
figures for the previous fiscal year, all such financial statements to
be prepared in accordance with generally accepted accounting principles
consistently applied and audited by the Borrower's present independent
certified public accountants or such other independent certified public
accountants selected by the Borrower and acceptable to Agent, together
with (1) the unqualified opinion of such accountants, and (2) any
management letter issued by such accountants to Borrower's management
in connection with such annual audit, which financial statements shall
be used to determine compliance with those financial covenants set
forth in Section 7.1(i) that are tested as of the end of the fourth
fiscal quarter of each fiscal year of Borrower during the Term hereof;
5. Section 7.1(a)(ii) of the Agreement is hereby deleted in
its entirety, and in its place shall be substituted the following:
(ii) As soon as available and in any event within
forty-five (45) days after the end of each fiscal quarter, unaudited
consolidated and consolidating balance sheets of Borrower and its
Consolidated Subsidiaries as of the end of such quarter and the related
consolidated and consolidating statements of income for such quarter
and for the portion of the Borrower's fiscal year ended at the end of
such quarter, setting forth in each case in comparative form, the
figures for the corresponding quarter and the corresponding portion of
the Borrower's previous fiscal year, all certified (subject to normal
year-end adjustments) as to fairness of presentation in all material
respects and generally accepted accounting principles and consistency
by the principal financial officer of Borrower, which financial
statements shall be used to determine compliance with those financial
covenants set forth in Section 7.1(i) that are tested as of the end of
the first, second and third fiscal quarters of each fiscal year of
Borrower during the Term hereof;
6. Section 7.1(i)(ii) of the Agreement is hereby deleted in
its entirety, and in its place shall be substituted the following:
(ii) Consolidated Total Funded Debt to Consolidated EBITDA.
Maintain on a consolidated basis at each fiscal quarter-end during the
Term hereof, a ratio of Consolidated Total Funded Debt to Consolidated
EBITDA (determined for the twelve-month period ending on the date of
any such calculation) of not more than 4.5 to 1.0 for each quarter-end
occurring at anytime during the Term hereof;
7. Section 7.1(k)(vi) of the Agreement is hereby deleted in
its entirety, and in its place shall be substituted the following:
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(vi) Environmental Matters Receipt of any notice that the
operations of the Borrower, any other Obligor or any Subsidiary of the
Borrower are not in full compliance with any of the requirements of any
applicable Environmental Law or Occupational Safety and Health Law;
receipt of notice that the Borrower, any other Obligor or any
Subsidiary of the Borrower is subject to any federal, state or local
investigation evaluating whether any remedial action is needed to
respond to the release of any Hazardous Materials or any other
hazardous or toxic waste, substance or constituent or other substance
into the environment; or receipt of notice that any of the Properties
or assets of the Borrower, any other Obligor or any Subsidiary of the
Borrower are subject to an Environmental Lien, in each case in which a
reasonable estimate of the cost of compliance, remediation or
satisfaction of the Environmental Lien is at least One Hundred Thousand
Dollars ($100,000.00). For purposes of this Section 7.1(k)(vi),
"Environmental Lien" shall mean a Lien in favor of any governmental or
regulatory agency, entity, authority or official for (1) any liability
under Environmental Laws or (2) damages arising from or costs incurred
by any such governmental or regulatory agency, entity, authority or
official in response to a release of any Hazardous Materials or any
other hazardous or toxic waste, substance or constituent or other
substance into the environment;
8. Section 7.2(a)(iv) of the Agreement is hereby deleted in
its entirety, and in its place shall be substituted the following.
(iv) Indebtedness incurred in the ordinary course of
business in connection with the acquisition of Property by Borrower
(excluding Indebtedness assumed on any capital assets acquired pursuant
to an Permitted Acquisition), provided that such Indebtedness shall not
exceed the value of the Property so acquired, and in any event, such
purchase money Indebtedness shall not exceed Twenty Million Dollars
($20,000,000.00) in the aggregate;
9. Section 7.2(a)(v) of the Agreement is hereby deleted in
its entirety, and in its place shall be substituted the following.
(v) Secured Indebtedness assumed by Borrower or a
Subsidiary in connection with an Permitted Acquisition which, in the
aggregate, shall not exceed Ten Million Dollars ($10,000,000.00),
provided that any Lien securing such Indebtedness shall attach only to
the Property securing such Indebtedness prior to its assumption, or
unsecured Indebtedness assumed by Borrower or a Subsidiary in
connection with an Permitted Acquisition or any other unsecured
Indebtedness incurred in the ordinary course of business, all of which,
in the aggregate, shall not exceed Ten Million Dollars
($10,000,000.00); and
10. Section 7.2(a)(vi) of the Agreement is hereby deleted in
its entirety, and in its place shall be substituted the following.
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(vi) Subordinated Debt incurred in connection with an
Permitted Acquisition not to exceed Ten Million Dollars
($10,000,000.00) in the aggregate, provided that such Subordinated Debt
is unsecured, and the holder of such Subordinated Debt has executed a
subordination and standby agreement in favor of Agent and Banks in form
and substance acceptable to the Agent and the Required Banks;
11. Section 7.2(m) of the Agreement is hereby deleted in its
entirety, and in its place shall be substituted the following.
(m) Operating Leases. Neither Borrower nor any Subsidiary
of the Borrower will enter into or permit to remain in effect any
agreements to rent or lease (as lessee) any real or personal property
(other than Capitalized Leases) for initial terms (including options to
renew or extend any term, whether or not exercised) of more than one
(1) year which in the aggregate (for the Borrower and all Subsidiaries
of the Borrower) provide for payments in any fiscal year in excess of
Two Percent (2.00%) of the net revenue of Borrower and all of its
Subsidiaries as indicated in their audited financial statements for the
immediately preceding fiscal year.;
12. Exhibit D to the Credit Agreement is hereby deleted in its
entirety, and in its place shall be substituted Exhibit D hereto.
13. Borrower hereby agrees to pay Agent a nonrefundable
amendment fee in the amount of Fifty Thousand Dollars ($50,000.00)
contemporaneously with the execution of this Third Amendment.
14. Borrower hereby agrees to reimburse Agent and Banks upon
demand for all out-of-pocket costs and expenses (including reasonable attorneys'
fees and expenses) incurred by Agent and Banks in the preparation, negotiation
and execution of this Third Amendment and all other documents, instruments and
agreements relating to this amendment of Borrower's existing credit facilities
with Bank. All of the obligations of Borrower under this Paragraph 6 shall
survive termination of the Agreement.
15. Borrower hereby represents and warrants to Agent and Banks
that:
(a) The execution, delivery and performance by Borrower of
this Third Amendment are within the corporate powers of Borrower, have been duly
authorized by all necessary corporate action and require no action by or in
respect of, or filing with, any governmental or regulatory body, agency or
official. The execution, delivery and performance by Borrower of this Third
Amendment do not conflict with, or result in a breach of the terms, conditions
or provisions of, or constitute a default under or result in any violation of,
and the Borrower is not now in default under or in violation of, the terms of
its Articles of Incorporation or Bylaws, any applicable law, any rule,
regulation, order, writ, judgment or decree of any court or governmental or
regulatory agency or instrumentality, or any agreement or instrument to which
Borrower is a party or by which Borrower is bound or to which Borrower is
subject;
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(b) This Third Amendment has been duly executed and
delivered and constitutes the legal, valid and binding obligation of Borrower
enforceable in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency or other similar laws affecting creditors'
rights in general; and
(c) As of the date hereof, all of the covenants,
representations and warranties of Borrower set forth in the Agreement are true
and correct and no "Event of Default" (as defined therein) under or within the
meaning of the Agreement has occurred and is continuing.
16. Borrower hereby releases Agent and Banks and their
successors, assigns, directors, officers, agents, employees, representatives and
attorneys from any and all claims, demands, causes of action, liabilities or
damages, whether now existing or hereafter arising or contingent or
noncontingent, or actions in law or equity of any type or matter, relating to or
in connection with any statements, agreements, action or inaction on the part of
Agent or Banks at any time prior to the execution of this Third Amendment, with
respect to Borrower or the Agreement, provided that such release shall not apply
to any such claim, demand, cause of action, liability or damage of which
Borrower is not deemed to have actual or constructive knowledge as of the
execution of this Third Amendment.
17. The Agreement, as hereby amended, and any other agreements
executed in connection therewith, are and shall remain the binding obligations
of Borrower, and all of the provisions, terms, stipulations, conditions,
covenants and powers contained therein shall stand and remain in full force and
effect, except only as the same are herein and hereby specifically varied or
amended, and the same are hereby ratified and confirmed.
18. All references in the Agreement to "this Agreement" and
any other references of similar import shall henceforth mean the Agreement as
amended by this Third Amendment. All capitalized terms used herein and not
otherwise defined herein shall have the respective meanings ascribed to them in
the Agreement, as amended by this Third Amendment.
19. This Third Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
except that Borrower may not assign, transfer or delegate any of its rights or
obligations hereunder.
20. This Third Amendment shall be governed by and construed in
accordance with the internal laws of the State of Missouri.
21. In the event of any inconsistency or conflict between this
Third Amendment and the Agreement, the terms, provisions and conditions of this
Third Amendment shall govern and control.
22. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND
CREDIT OR TO FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT, INCLUDING PROMISES TO
EXTEND OR RENEW SUCH DEBT, ARE NOT ENFORCEABLE. TO PROTECT BORROWER, AGENT AND
BANKS FROM ANY MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS REACHED BY
BORROWER, AGENT AND BANKS COVERING SUCH MATTERS ARE CONTAINED IN THE AGREEMENT,
AS HEREBY AMENDED, WHICH CONSTITUTES A COMPLETE AND EXCLUSIVE
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STATEMENT OF THE AGREEMENTS BETWEEN BORROWER, AGENT AND BANKS EXCEPT AS
BORROWER, AGENT AND BANKS MAY LATER AGREE IN WRITING TO MODIFY. THE AGREEMENT,
AS HEREBY AMENDED, EMBODIES THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE
PARTIES HERETO AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS (ORAL OR
WRITTEN) RELATING TO THE SUBJECT MATTER HEREOF.
23. Notwithstanding any provision contained in this Third
Amendment to the contrary, this Third Amendment shall not be effective unless
and until Agent shall have received:
(a) this Third Amendment, duly executed by Borrower;
(b) the First Amendment to Revolving Credit Note, duly
executed by Borrower and accepted by Union Planters Bank, N.A.;
(c) the First Amendment to Revolving Credit Note, duly
executed by Borrower and accepted by Bank One Louisiana, N. A.;
(d) the First Amendment to Revolving Credit Note, duly
executed by Borrower and accepted by Hibernia National Bank;
(e) the First Amendment to Revolving Credit Note, duly
executed by Borrower and accepted by Mercantile Business Credit Inc.;
(f) a copy of resolutions of the Board of Directors of
Borrower, duly adopted, which authorize the execution, delivery and performance
of this Third Amendment;
(g) an incumbency certificate, executed by the Secretary of
Borrower, which shall identify by name and title and bear the signatures of all
of the officers of Borrower executing this Third Amendment; and
(h) a Consent of Guarantors in form and substance
satisfactory to Agent, duly executed by each of the Subsidiary Guarantors.
24. This Third Amendment is made solely for the benefit of
Borrower, Agent and Banks as set forth herein, and is not intended to be relied
upon or enforced by any other person or entity.
25. This Third Amendment may be executed in one or more
counterparts by the parties hereto, and shall constitute one agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Third Amendment as of the day and year first written above on this _____ day of
____________________, 1999.
Borrower:
THE XXXX GROUP INC.
By:
------------------------
Title:
------------------------
Agent:
MERCANTILE BUSINESS CREDIT INC.
By:
------------------------
Title:
------------------------
Banks:
Revolving Credit Commitment: MERCANTILE BUSINESS CREDIT INC.
$31,250,000.00
By:
------------------------
Title:
------------------------
Revolving Credit Commitment: BANK ONE LOUISIANA, N. A.
$25,000,000.00
By:
------------------------
Title:
------------------------
Revolving Credit Commitment: UNION PLANTERS BANK N. A.
$18,750,000.00
By:
------------------------
Title:
------------------------
Revolving Credit Commitment: HIBERNIA NATIONAL BANK
$25,000,000.00
By:
------------------------
Title:
------------------------
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EXHIBIT D
COMPLIANCE CERTIFICATE
_________________, 19___
Mercantile Business Credit Inc.
000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Senior Credit Officer
Gentlemen:
Reference is hereby made to that certain Credit Agreement
dated as of May 15, 1998, by and between you, as agent for the Banks named
therein, and the undersigned (as from time to time amended, the "Agreement").
All capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to them in the Agreement.
The undersigned hereby certifies to you that as of the date
hereof:
(a) All of the representations and warranties set forth in
Section 6 of the Agreement are true and correct as if made on the date hereof;
(b) No violation or breach of any of the affirmative covenants
set forth in Section 7.1 of the Agreement has occurred and is continuing;
(c) No violation or breach of any of the negative covenants
set forth in Section 7.2 of the Agreement has occurred and is continuing;
(d) No Default or Event of Default under or within the meaning
of the Agreement has occurred and is continuing;
(e) The financial statements of Borrower and its Consolidated
Subsidiaries delivered to you with this letter are true, correct and complete in
all material respects and have been prepared in accordance with generally
accepted accounting principles consistently applied; and
(f) The financial covenant information set forth in Schedule 1
to this letter is true and correct.
Very truly yours,
THE XXXX GROUP INC.
By:
-------------------
Name:
-------------------
Title:
-------------------
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Schedule 1
To Compliance Certificate
(The Certificate attached hereto is as of ________________)
Capitalized terms used herein shall have the meanings set
forth in the Credit Agreement dated as of May 15, 1998 among The Xxxx Group
Inc., Mercantile Business Credit Inc., as agent, and the lenders named therein
(as amended, restated, supplemented or otherwise modified from time to time, the
"Agreement"). Subsection references herein relate to the subsections of the
Agreement.
A. MAXIMUM CAPITAL EXPENDITURES
1. Actual Capital Expenditures for current Fiscal Year-To-Date $______________
2. Maximum Permitted (Section 7.2(i)) $______________
B. CONSOLIDATED EBITDA
For the 12 months ended _____________:
1. Net Income (excluding extraordinary items) $______________
2. Income Tax Expense $______________
3. Interest Expense $______________
4. Amortization and Depreciation Expenses $______________
5. Consolidated EBITDA (sum of Lines B1 through B4) $______________
C. DEBT SERVICE COVERAGE RATIO
1. Consolidated EBITDA (from B5 above) $______________
2. Interest Expense (from Line B3 above) $______________
3. Scheduled payments of principal on Indebtedness (for the 12 months ending
--------------) $______________
6. Consolidated Debt Service (Sum of D2 and D3) $______________
7. Debt Service Coverage (D1 divided by D4) ____ to 1.0
8. Minimum Required (Section 7.1(i)(i)) 1.75 to 1.0
D. MAXIMUM LEVERAGE RATIO
1. Average Revolving Credit Loans outstanding $______________
2. Face amount of Letters of Credit outstanding $______________
3. Other Borrowed Money Indebtedness outstanding $______________
4. Subordinated Indebtedness up to $10,000,000.00 $______________
5. Consolidated Total Funded Debt outstanding as of ____________
(Sum of E1 through E3 minus E4) $______________
6. Consolidated EBITDA (from B5 above) $______________
7. Leverage Ratio (E4 divided by E5) ____ to 1.0
8. Maximum Permitted (Section 7.1(i)(ii)) 4.50 to 1.0
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E. SHAREHOLDERS' EQUITY
1. Shareholders' Equity as of ______________ $______________
2. Beginning Required Shareholders' Equity $135,000,000.00
3. Cumulative Quarterly Net Income (excluding any Quarterly Net Losses) for $______________
Quarters ending November 30, 1997 and thereafter
4. Net Proceeds of Capital Stock issued subsequent to August 31,1997 $______________
5. Total Required Shareholders' Equity (Sum of F2 through F4) $______________
F. TOTAL FUNDED DEBT TO TOTAL CAPITALIZATION
1. Consolidated Total Funded Debt (Line E4 above) $______________
2. Shareholders' Equity (Line F1 above) $______________
3. Total Capitalization (Sum of G1 plus G2) $______________
4. Ratio of G1 divided by G3) ____ to 1.0
5. Maximum Permitted Ratio (Section 7.1(i)(iv)) 0.60 to 1.0
G. OTHER INDEBTEDNESS
1. Purchase money debt as of _________________ $______________
2. Maximum permitted (Section 7.2(a)(iv)) $______________
3. Subordinated Debt as of _______________ $______________
4. Maximum permitted (Section 7.2(a)(v)) $______________
5. Other Indebtedness $______________
6. Maximum permitted (Section 7.2(a)(vi)) $______________
H. RESTRICTION ON LEASES
1. Direct and indirect obligations with respect to leases $______________
2. Maximum permitted (Section 7.2(m)) $______________
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CONSENT OF GUARANTORS
Each of the undersigned hereby consent to the terms,
provisions and conditions of that certain Third Amendment to Credit Agreement
dated as of ___________________, 1999 (the "Third Amendment") made by and
between The Xxxx Group Inc. ("Borrower"), MERCANTILE BUSINESS CREDIT INC., a
Missouri corporation, BANK ONE LOUISIANA, N. A., a national banking association
(successor to First National Bank of Commerce, assignee of City National Bank of
Baton Rouge), UNION PLANTERS BANK N.A., a national banking association, and
HIBERNIA NATIONAL BANK, a national bank (collectively, the "Banks"), and
MERCANTILE BUSINESS CREDIT INC., a Missouri corporation, as agent for Banks (in
such capacity, the "Agent"), which amends that certain Credit Agreement dated as
of May 15, 1998 by and between Borrower, Banks and Agent, as amended by that
certain Amendment to Credit Agreement dated as of as of August 31, 1998 and that
certain Second Amendment to Credit Agreement dated as of February 1, 1999 (as
amended, the "Credit Agreement"). The undersigned jointly and severally
acknowledge and agree that (i) the execution and delivery of the Third Amendment
by Borrower will not adversely affect or impair any of the undersigned's
obligations to Banks and Agent under that certain Continuing Guaranty dated May
15, 1998 executed by each of the undersigned in favor of Banks and Agent (the
"Guaranty"), (ii) payment of the "Borrower's Obligations" (as such term is
defined in the Credit Agreement) is guaranteed to Agent and Banks by each of the
undersigned pursuant to the terms of the Guaranty and (iii) the Guaranty is in
full force and effect on the date hereof and the same is hereby ratified and
confirmed.
Executed this _______ day of _______________________, 1999.
Guarantors:
ALLOY PIPING PRODUCTS, INC.
X.X. XXXX, INC.
C.B.P. ENGINEERING CORP.
CONNEX PIPE SYSTEMS, INC.
XXXXXX A/DE, INC.
XXXXXX ENGINEERING AND CONSULTING, INC.
XXXXXX POWER SERVICES, INC.
FVF, INCORPORATED
IRM/NAPTECH JOINT VENTURE, L.L.C.
NAPTECH, INC.
NAPTECH PRESSURE SYSTEMS CORPORATION
NATIONAL FABRICATORS, INC.
PIPE XXXXXXX INC.
PROSPECT INDUSTRIES (HOLDINGS) INC.
SAON PROPERTIES, INC.
SECORP, INC.
XXXX XXXXXXX, INC.
XXXX CONSTRUCTORS, INC.
XXXX ENERGY SERVICES, INC.
XXXX FABRICATORS, INC.
XXXX-XXXXXX FABRICATION, INC.
XXXX INDUSTRIAL SUPPLY CO., INC.
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XXXX INTERNATIONAL, INC.
XXXX MAINTENANCE, INC.
XXXX MANUFACTURING & SERVICES, INC.
XXXX POWER SERVICES, INC.
XXXX PROCESS & INDUSTRIAL GROUP, INC.
SUNLAND FABRICATORS, INC.
UCI HOLDING, INC.
WELDING TECHNOLOGY AND SUPPLY, INC.
WORD INDUSTRIES FABRICATORS, INC.
By:
-------------------------------------
Name:
Title:
of Alloy Piping Products, Inc., X.X.
Xxxx, Inc., C.B.P. Engineering Corp.,
Connex Pipe Systems, Inc., Xxxxxx
A/DE, Inc., Xxxxxx Engineering and
Consulting, Inc., Xxxxxx Power
Services, Inc., FVF, Incorporated,
IRM/NAPTech Joint Venture, L.L.C.,
NAPTech, Inc., NAPTech Pressure
Systems Corporation, National
Fabricators, Inc., Pipe Xxxxxxx, Inc.,
Prospect Industries (Holdings) Inc.,
SAON Properties, Inc., SECORP, Inc.,
Xxxx Xxxxxxx, Inc., Xxxx Constructors,
Inc., Xxxx Energy Services, Inc., Xxxx
Fabricators, Inc., Xxxx-Xxxxxx
Fabrication, Inc., Xxxx Industrial
Supply Co., Inc., Xxxx International,
Inc., Xxxx Maintenance, Inc., Xxxx
Manufacturing & Services, Inc., Xxxx
Power Services, Inc., Xxxx Process &
Industrial Group, Inc., Sunland
Fabricators, Inc., UCI Holding, Inc.,
Welding Technology and Supply, Inc.
and Word Industries Fabricators, Inc.
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